Louis
Victor Perez appeals his conviction and sentence on two
counts of aiding and abetting the harboring of an
undocumented alien in violation of 8 U.S.C. § 1324(a) and
18 U.S.C. § 2. For the reasons assigned, we affirm.

BACKGROUND

On
March 19, 1998, the Houston Police Department (HPD) received
a telephone call from Sandra Flores who reported that her
daughter, Merced Caletre-Flores, and two grandchildren were
being held hostage at a house in Houston. Caletre-Flores and
her children had been smuggled into the United States, and
Flores claimed that they would not be released until the
smugglers had received payment for their services. Flores
admitted that she was in the country without authorization
and provided the HPD with a telephone number of the house
where her daughter and grandchildren were being held. HPD
notified the Immigration and Naturalization Service. INS
agents traced the telephone number to the residence located
at 8505 Lenore Street,(1)
set up a surveillance, and observed people freely leaving
and entering with grocery bags. They saw codefendant
Francisco Perez-Ordones mowing the lawn. At one point Perez
came out of the house and conversed briefly with Perez-Ordones.

At
about 5:00 p.m. the INS and HPD executed a search warrant of
the house and arrested 24 undocumented aliens, 20 of whom
were found inside the house. As the officers approached the
house, Perez-Ordones attempted to flee, but was quickly
detained. Many of the aliens were "very dirty" and
"dressed poorly." Perez, the only United States
citizen arrested, was found near a sleeping pallet in the
garage located off the living room of the house. As Perez
was handcuffed, he stated "I don't let them over
here." Prior to execution of the search warrant,
codefendant Elma Glorisabel Umanzor had been observed
leaving the house with another Hispanic female. INS agents
followed Umanzor to a local grocery store where she
conducted business at the moneygram counter. The agents
confronted Umanzor as she and the other female returned to
the parking lot and arrested her after determining that she
too was an undocumented alien. Umanzor possessed some cash
and Western Union receipts which were later determined to be
connected with the alien smuggling operation.

Agents
concluded that the Lenore Street residence was a "drop
house," a house holding aliens pending their full
payment for smuggling services and transportation to their
final destination. Several notebooks containing the names of
aliens, the telephone numbers of their relatives who could
be contacted for money, and records of completed wire
transfers were found in the house. One of the notebooks
contained writing on the inside cover addressed to
"Louis." This notebook was found in Perez's living
quarters and contained several entries, dated February 1998,
indicative of an alien smuggling operation. One entry read,
"took new truck with Georgia, 7 people and 1 guia."(2)
Another read, "2 people picked up at Falfurrias at 9:30
p.m. on Road 425."(3)
The notebook also contained a number of similar entries.(4)
The next day, March 20, 1998, a criminal complaint was filed
charging Perez, Umanzor, and Perez-Ordones with aiding and
abetting each other in the harboring of "an alien"
in violation of 8 U.S.C. § 1324(a)(1) and 18 U.S.C. § 2.
The affidavit attached to the complaint reflected that 24
undocumented aliens had been arrested, but the complaint did
not charge the defendants with harboring a specific alien.

The
INS immediately took custody of the aliens. On March 25,
1998, after preliminary and detention hearings, the INS gave
defense counsel a list of names and locations of the
detained aliens. At that time, only four had been released
on their own recognizance, including Merced Caletre-Flores
and her two children. The INS deported six of the detained
aliens the next day; five more on March 31; and another on
April 1. One had been released on bond on March 31. As a
result, the defense was able to interview only five of the
24 undocumented aliens taken from the house.

The
three defendants were indicted for one count of aiding and
abetting the harboring of an undocumented alien, Merced
Caletre-Flores. Shortly before trial the government
discovered that Caletre-Flores and her two children, along
with her mother Sandra Flores, had "disappeared"
after being released on bond. A superseding indictment
charged Perez and the codefendants with two counts of aiding
and abetting the harboring of Jose Amado Aguilar-Jimenez and
Jose Chevez-Nolasco. Both undocumented aliens were listed in
the affidavit attached to the original complaint.

On
the eve of trial Perez's codefendants pled guilty to both
counts in the superseding indictment. The first trial
resulted in a hung jury. On retrial, the jury returned
guilty verdicts on both counts. The Presentence
Investigation Report characterized Perez's role in the
offense as one of a manager/supervisor. Perez's objections
to the information contained in the PSI were rejected and
the court imposed concurrent sentences of 51 months'
imprisonment and three years' supervised release. Perez
timely appealed.

Perez
raises several issues on appeal. He first contends that the
indictments should have been dismissed because the swift
deportation of the alien witnesses violated his right to
compulsory process under the sixth amendment and his right
to due process under the fifth amendment. Perez further
contends that the superseding indictment should have been
dismissed because it was filed five months after the filing
of the complaint in violation of the Speedy Trial Act.(5)
Perez also claims that the district court abused its
discretion by excluding the deported aliens' out-of-court
statements to the INS agents and by restricting defense
counsel's cross-examination of a government witness. Perez
also contends that the trial court's limitation on
cross-examination violated the confrontation clause of the
sixth amendment. Perez's final complaint is that the
district court erroneously imposed a two-level upward
adjustment for his role as a manager/supervisor in the
offense. We address each of these issues in turn.

ANALYSIS

1.
Deportation of undocumented aliens:

Perez
unsuccessfully moved to dismiss both indictments, alleging
that the deportation of the alien witnesses before they
could be interviewed by the defense deprived him of his
sixth amendment right to compulsory process and his fifth
amendment right to due process. The defense theory in both
trials was that Perez was not involved in the alien
smuggling operation and did not harbor any of the
undocumented aliens but, rather, he merely resided in the
garage apartment attached to the residence where the aliens
were being housed. He claimed that on the day of his arrest
he was alone in his room recovering from an illness. Perez
contends that the deported witnesses could have corroborated
his claim of mere presence. Additionally, he claims that
their statements would have contradicted directly the
testimony of Jose Aguilar-Jimenez and Jose Chevez-Nolasco,
both of whom testified that Perez ordered them into the
house upon their arrival and instructed them to remain in
the bedrooms hidden from view. We review the constitutional
challenge de novo.(6)

Because
of its duty to execute the immigration policy adopted by
Congress, the government may deport undocumented alien
witnesses upon a good-faith determination that they possess
no information favorable to a criminal defendant.(7)
To establish a compulsory process or due process violation,
a criminal defendant must make a "plausible showing
that the testimony of the deported witnesses would have been
material and favorable to his defense, in ways not merely
cumulative to the testimony of available witnesses."(8)
The sanction of dismissal is warranted "only if there
is a reasonable likelihood that the testimony could have
affected the judgment of the trier of fact."(9)
Our review of the record persuades that the claimed
constitutional violations did not occur herein.

Upon
their arrest, the aliens were interviewed by the INS to
determine whether they had any information relevant to the
criminal trial. Of the eight aliens deported before the
indictment was returned, six could not identify Perez from a
photo spread. Several stated that they did not see Perez
until everyone at the house was arrested. Additionally, two
of the deported witnesses stated that no one at the house
asked them for money; one told the INS agent that no guias
were at the house at the time it was searched; and another
stated that no one in the house was a "coyote."(10)
As Perez was not charged with smuggling aliens across the
border or transporting them within the United States, the
statements that there were no guias or coyotes in the house
and that no one asked them for money is irrelevant to the
issue whether Perez harbored or concealed from detection
Aguilar-Jimenez and Chevez-Nolasco.(11)

Although
the deported aliens who could not identify Perez or did not
see him until their arrest may have provided testimony
favorable to his defense, we reject his compulsory process
and due process challenges because he has failed to show
that their testimony was not merely cumulative of the
testimony of available witnesses. Defense counsel was able
to detain and depose six material witnesses, including
Aguilar-Jimenez and Chevez-Nolasco. The district court did
not err in denying these challenges by Perez.

2.
Speedy Trial Act:

Perez
next contends that his statutory right to a speedy trial was
violated because the superseding indictment contained
charges identical to the charge in the original complaint
but different from the charge alleged in the first
indictment. As the underlying facts are undisputed, we
review the district court's interpretation of the Speedy
Trial Act de novo.(12)

The
Speedy Trial Act provides that "[a]ny information or
indictment charging an individual with the commission of an
offense shall be filed within thirty days from the date on
which such individual was arrested or served with a summons
in connection with such charges."(13)
The Act further provides for mandatory and automatic
dismissal of the complaint should the government fail to
comply with the applicable time limits:

If,
in the case of any individual against whom a complaint is
filed charging such individual with an offense, no
indictment or information is filed within the time limit
required by section 3161(b) as extended by 3161(h) of this
chapter, such charge against that individual contained in
such complaint shall be dismissed or otherwise dropped.(14)

If
dismissal is required, the district court retains the
discretion to dismiss the charges either with or without
prejudice.(15)
The statute's dismissal sanction is narrowly applied.(16)

As
the Act specifically provides, dismissal of the charges is
required only if an indictment is secured more than 30 days
from the filing of a complaint and contains identical
charges. Thus, in Giwa, we held that where
the original complaint alleged credit card fraud, no
violation of the Act occurred when the defendant was
subsequently indicted for mail fraud and use of a false
Social Security number, despite the fact that the offenses
for which Giwa was arrested and indicted arose from the same
criminal transaction.(17)
Similarly, in Bailey, we held that §
3161(b) was not violated when the complaint charged
misdemeanor offenses and a subsequent indictment, brought
more than 30 days after the arrest, charged four felony
violations of the same statute.(18)
In the instant case there is no question that the first
indictment timely charged Perez with the same offense
alleged in the complaint.

The
Act is silent, however, with respect to the situation where
the government obtains a timely indictment and thereafter
secures a superseding indictment based on the same criminal
transaction more than 30 days after the defendant's arrest.
Courts addressing this issue have held that where the
superseding indictment adds no new facts and contains
charges identical to those in the original timely
indictment, the filing of the first indictment tolls the
speedy trial "clock."(19)
In fact, even an indictment that is timely returned but
later is found to be legally deficient has been held to
satisfy the "any information or indictment"
language of § 3161(b) if the subsequent indictment is
materially identical to the first indictment, the government
does not act in bad faith, and there is no prejudice to the
defendant.(20)
We conclude that the filing of the first indictment charging
Perez with aiding and abetting in harboring Merced Caletre-Flores
was sufficient to toll the clock for purposes of the filing
of the superseding indictment charging Perez with aiding and
abetting the two codefendants in harboring Aguilar-Jimenez
and Chevez-Nolasco. Perez insists that under Palomba
the charges in the superseding indictment are not identical
to the charge in the first indictment, but are identical to
that contained in the original complaint. We disagree. In Palomba,
the complaint accused the defendant of making false
statements to a federal agency, mail fraud, and conspiracy,
in violation of 18 U.S.C. §§ 1001, 1341, and 371. The
first indictment complied with the time limitations of the
Act and charged the defendants with conspiracy and making
false statements to a federal agency.(21)
The superseding indictment, filed more than 30 days after
the defendant's arrest, charged Palomba with mail fraud,
wire fraud, and making false statements to a federal agency.
The court held that Palomba's counsel was ineffective for
failing to move for dismissal of the mail fraud counts in
the superseding indictment as untimely, as they had been
raised in the complaint but omitted from the first
indictment.(22)

By
contrast, in the instant case the complaint and first
indictment charged Perez with aiding and abetting two
codefendants in harboring an undocumented alien in violation
of 8 U.S.C. § 1324(a)(1)(A)(ii) and (iii) and 18 U.S.C. §
2 on or about March 19, 1998.(23)
The superseding indictment likewise charged Perez with the
same statutory violations based on the same underlying
circumstances.(24)
Thus, we conclude that the first indictment tolled the
30-day arrest-to-indictment clock.

That
different aliens are named in the two indictments does not
change our conclusion. We have noted that the purpose of the
30-day rule is "to force the Government to elect to
proceed against the arrestee or to release him."(25)
Other courts have observed that the rule "ensure[s]
that the defendant is not held under an arrest warrant for
an excessive period without receiving formal notice of the
charge against which he must prepare to defend
himself."(26)
Our conclusion today satisfies both concerns. The timely
filing of the first indictment reflects the prosecution's
decision to charge Perez in connection with the events that
transpired at the 8505 Lenore Street residence on March 19,
1998. And, as all three accusatory instruments allege the
same statutory violations, Perez was on notice of the
charges against him.

Perez
was not prejudiced by the filing of the superseding
indictment, despite his complaint to the contrary. On April
6, 1998, 10 days prior to the return of the first indictment
naming Caletre-Flores as the harbored alien, Perez
designated five material witnesses for deposition, including
Aguilar-Jimenez and Chevez-Nolasco. On April 10, the defense
designated another material witness for deposition. The
court thereafter ordered the detention of Aguilar-Jimenez
and Chevez-Nolasco, three months prior to the return of the
superseding indictment. Thus, as of April 10, Perez was
alerted to prepare his defense against the charge of
harboring any one of the twenty-four aliens named in the
complaint, and later he was able to depose and ensure the
presence at trial of the two aliens actually named in the
superseding indictment. Further, the defense theory that
Perez was an innocent bystander to the alien smuggling
operation and that he merely resided in the separate garage
apartment next to where the aliens were being housed was
equally viable without regard to the number or identity of
the aliens alleged to have been harbored. Thus, as the
Speedy Trial Act was not violated and the defense suffered
no prejudice, the district court appropriately declined to
dismiss the superseding indictment. 3. Admission of
deported aliens' statements to INS agents:

Perez
claims that the trial court should have allowed him to
introduce the statements made by the deported witnesses to
INS agents under the residual exception to the hearsay rule.(27)
We review the admission or exclusion of evidence for abuse
of discretion.(28)
We will not disturb the trial court's ruling on the
admissibility of evidence under the residual exception to
the hearsay rule "absent a definite and firm conviction
that the court made a clear error of judgment in the
conclusion it reached based upon a weighing of the relevant
factors."(29)

The
district court excluded the deported witnesses' statements
because it concluded that they lacked the requisite
circumstantial guarantees of trustworthiness. Perez counters
that the aliens' statements were material and bore an
indicia of reliability equivalent to declarations against
interest because they were made to the very agency that
would be responsible for their deportation and possible
criminal prosecution, and because they were made at the same
time as their admissions that they had entered the United
States without the requisite authorization. Special Agent
Bill Burkland of the INS, who had 12 years' experience in
the anti-smuggling unit, testified that in the initial
interview approximately ninety percent of undocumented
aliens apprehended do not give a truthful and accurate
account of the events that led up to their arrest. Indeed,
both Aguilar-Jimenez and Chevez-Nolasco were designated
initially as defense witnesses, but subsequently provided
testimony implicating Perez in the smuggling operation.
Further, the aliens made their statements to the agents
during an informal interview and, thus, were not subject to
cross-examination. Nor were the statements made under oath.(30)
We therefore find no abuse of discretion.

4.
Limitation on cross-examination of Aguilar-Jimenez:

Defense
counsel sought to impeach the credibility of government
witness Aguilar-Jimenez by establishing that he and
Chevez-Nolasco had concocted their stories while confined at
the Liberty County Detention Center. The questions asked by
defense counsel pertained to the housing and physical
conditions at Liberty County and, specifically, whether and
how often the inmates were provided with an opportunity to
talk freely with one another. Without asking Aguilar-Jimenez
whether he spoke with Chevez-Nolasco or any other arrested
alien before giving his deposition or trial testimony,
however, Perez's attorney attempted to cross-examine him
with respect to his April 22, 1998 deposition at which he
stated that he did not talk to any other arrested alien
after his arrest. The trial court did not allow pursuit of
this line of questioning, concluding that it was peripheral,
cumulative, and would tend to confuse the jury. Perez
contends that the district court abused its discretion and
violated his rights under the confrontation clause of the
sixth amendment, claiming that the questions were crucial in
establishing that Aguilar-Jimenez had lied at either his
deposition or at trial. We are not persuaded.

The
confrontation clause of the sixth amendment guarantees the
right of a criminal defendant "to be confronted with
the witnesses against him."(31)
The Supreme Court has emphasized that "'the main and
essential purpose of confrontation is to secure for the
opponent the opportunity of cross-examination.'"(32)
We previously have stated that "[t]he Confrontation
Clause of the Sixth Amendment is satisfied where defense
counsel has been permitted to expose to the jury the facts
from which jurors, as the sole triers of fact and
credibility, could appropriately draw inferences relating to
the reliability of the witness."(33)
Once it is determined that the sixth amendment has been
satisfied, we review the district court's restrictions for
abuse of discretion, mindful of the wide latitude afforded
to the trial judge in imposing reasonable restraints on the
scope of cross-examination.(34)
If an abuse of discretion has occurred, we review the error
under the harmless error doctrine.(35)

Notwithstanding
the restrictions imposed on defense counsel's
cross-examination, the record reflects that counsel was able
to elicit testimony from Aguilar-Jimenez that: (1) his trial
testimony differed from his deposition testimony in that he
stated at his deposition that Perez was in charge of giving
the aliens food, whereas he testified at trial that Perez
did not give them any food; and (2) he lied to the INS
agents and defense investigators when they initially
interviewed him by saying he had arrived at the Lenore
Street residence on the day of his arrest when he actually
had resided at the house for three days. Defense counsel was
also permitted to cross-examine Aguilar-Jimenez about
inconsistencies in the statements he initially gave to
defense investigators and his testimony at trial regarding
Perez's involvement in the alien smuggling operation, and
whether the INS had promised to provide him with a work
permit in exchange for his testimony. Defense counsel had an
ample opportunity to impeach Aguilar-Jimenez's credibility.
We must conclude that the district court neither violated
Perez's sixth amendment right to confrontation nor abused
its discretion in imposing the challenged limits on
cross-examination.

5.
Sentence enhancement:

Perez's
final complaint is that the district court erroneously
imposed a two-level enhancement to his base offense level
under U.S.S.G. § 3B1.1(c) for having a supervisory role in
the offense.(36)
The PSI recommended the upward adjustment because Perez
"provided the house for storing the smuggled aliens and
directed the other defendants." We review de novo the
district court's application of the sentencing guidelines
and will uphold its findings of fact unless they are clearly
erroneous.(37)
A factual finding is not clearly erroneous if it is
plausible in light of the entire record.(38)

At
the sentencing hearing, the district court adopted the
recommendations in the PSI in their entirety and, in large
measure, made credibility assessments, rejecting suggestions
by Perez that his involvement was scant and limited. We
defer to the trial court's superior position in making such
credibility calls.

Accordingly,
for these reasons, we AFFIRM Perez's conviction and
sentence.

1. The house was owned by Joel Perez and rented by the
defendant. The record contains no evidence that the two were
related.

2. "Guia" is Spanish for "guide."
Guias typically aid aliens in getting around the border
checkpoints.

3. There is a border checkpoint at Falfurrias, Texas.

4. The government's expert testified that the writing in
the notebook matched Perez's handwriting.

11. United States v. Romero-Cruz, 201
F.3d 374 (5th Cir.), cert. denied, 120 S. Ct. 2017
(2000) (holding that testimony of deported witnesses was not
material to defendant's conviction where testimony would
have served only to impeach second alien's testimony on a
collateral matter); Sierra-Hernandez, 192
F.3d at 503 (alien witnesses' presumed testimony that
defendant was not hired to take them across the border was
immaterial to whether he transported them within the United
States).

23. Actually, the first indictment alleged a violation of
8 U.S.C. § 1324(a)(1)(C), the statutory provision for the
unlawful harboring of aliens as contained in the 1988
version of the United States Code. In 1994 the legislature
renumbered § 1324 without changing the provision's wording.
Thus, § 1324(a)(1)(A)(iii) is the corresponding harboring
provision. See Pub. L. 103-322, § 60024, reprinted
in 1994 U.S.C.C.A.N. 1981. Such a technical error in
transcription, however, does not alter the result.

24. United States v. Castellano, 848
F.2d 63, 65 (5th Cir. 1988) (filing of superseding
indictment more than 30 days after defendant's arrest did
not violate Speedy Trial Act because superseding indictment
"was predicated on the same fraudulent acts as the
earlier indictment"); Berry, 90 F.3d
at 151; United States v. Hsin-Yung, 97 F.
Supp.2d 24 (D.D.C. 2000) (dismissal of superseding
indictment not required although second indictment contained
violation of same statute as original complaint; second
indictment alleged violation of different provisions of
statute, and provisions were made up of different elements,
proscribed different types of conduct and imposed different
penalties).

25. Perez, 845 F.2d at 102.

26. Berry, 90 F.3d at 151.

27. Federal Rule of Evidence 807 provides:

A
statement not specifically covered by Rule 803 or 804 but
having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the
court determines that (A) the statement is offered as
evidence of a material fact; (B) the statement is more
probative on the point for which it is offered than any
other evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of these
rules and the interests of justice will best be served by
admission of the statement into evidence.

30.
United States v. Sanchez-Lima, 161 F.3d 545
(9th Cir. 1998) (holding that deposition testimony of
deported witnesses had circumstantial guarantees of
trustworthiness, in part, because the statements were made
under oath and the aliens were subject to the penalties of
perjury, the testimony was preserved on videotape, and the
witnesses were subject to cross-examination).

36.
Section 3B1.1(c) provides for two-level increase if the
defendant was an organizer, leader, manager, or supervisor
in any criminal activity involving fewer than five
participants. U.S.S.G. § 3B1.1(c) (1998).